RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-03646
		INDEX CODE:  111.00, 126.04
		131.00
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  His nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) be removed from his records.

2.  His former rank of technical sergeant (E-6) be restored with back pay and allowances.  

3.  He be promoted to the grade of master sergeant (E-7) with back pay and allowances.  

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APPLICANT CONTENDS THAT:

He was given an Article 15 for making a false statement which he does not recall doing.  Two MRIs of his brain have showed atrophy bilaterally in his occipital lobes.  He was found to have a cognitive disorder, which causes source confusion, false positive and intrusion errors, which surfaced late in his career and is clearly the effects of this physical condition that resulted in his disciplinary action.  

He was an exemplary NCO, hand-picked by his superiors as a role model for first term airmen.  He was the man with “encyclopedic knowledge and experience of both medical standards and requirements.”   He was requested by flight surgeons and technicians alike for advice regarding the qualifications and dispositions of individuals with questionable flying, special duty, and world wide medical qualifications.  By 1997 or 1998, he began to notice some problems with his memory.  Prior to this time, he had managed all his appointments, and meetings in his head. He began to start using his desk calendar to keep track of appointments.  He carried small notebooks in his uniform pocket so he could compensate for his deteriorating memory.  He would use them to keep track of anything he needed to remember.  The more stressed he got about his condition, the worse it got.  He began to have episodes of being “lost.”  He knew where he was but everything around him seemed unfamiliar.   

A Neuropsychological Assessment prepared by the Clinical Neuropsychologist, reported he had “executive difficulties characterized by source confusion, false positive and intrusion errors.”  This testing was done just a few months after his Article 15.  These conditions obviously did not appear overnight and must be the cause of the incident that led to the Article 15.  To this day, he does not remember the charges brought against him.  His Area Defense Counsel urged him to request a trial by court-martial because the Judge Advocate General had not addressed a mandatory area of the charge (intent).  He chose to trust his commander would be fair and would at least consider the fact that he did not even remember the alleged conversation.  In less than six months, his commander who gave him the Article 15 signed a letter to the Medical Evaluation Board indicating that his condition was so severe that he should be medically retired.  

In support of his request, applicant provides a personal statement; medical documents associated with the MRI and the neuropsychological assessment services; copy of his DD Form 214; certificates and letters of appreciation; documents associated with his appeal of his nonjudicial punishment and copies of his performance reports.  His complete submission, with attachments, is at Exhibit A. 

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STATEMENT OF FACTS:

On 1 June 2000, the applicant was retired in the grade of staff sergeant for length of service.  He was credited 20 years and 3 days of active duty service.  Prior to his retirement, the Secretary of the Air Force determined he had not served satisfactorily in any higher grade than staff sergeant and that he would not be advanced under provisions of 10 U.S.C. 8964.

On 22 July 1999, the applicant’s commander imposed nonjudicial punishment on the applicant, who was then serving in the grade of technical sergeant, for making a false official statement.  The punishment consisted of a reduction in grade to staff sergeant and forfeiture of $150.00 per month for two months.  The portion of the punishment pertaining to the reduction in grade and forfeiture of $150.00 for 1 month was suspended until 21 January 2000, at which time, unless sooner vacated, it would be remitted without further action.  He appealed the punishment and his appeal was denied by a superior commander.  On 29 October 1999, the commander vacated the suspended portion of the nonjudicial punishment based on his determination that the applicant had made another false official statement and for failure to go to his appointed place of duty on two occasions.  The foregoing proceedings were reviewed and found legally sufficient by the wing judge advocate on 4 November 1999.

The remaining relevant facts pertaining to this application, extracted from the applicant's military medical records, are contained in the letters prepared by the AFBCMR Medical Consultant at Exhibit C.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant states that the facts support the applicant's contention that he was suffering from a cognitive disorder, Post Traumatic Stress Disorder (PTSD) and depression at the time he was accused and disciplined with an Article 15 by his supervisors for making false statements and failure to go.  Additionally, there is evidence in the available medical records that alcohol abuse may have been a contributing factor but there is no evidence that at the times of his disciplinary occurrences in May and October 1999 that alcohol was ever suspected as a factor.  The BCMR Medical Consultant states that it is likely that the documented cognitive dysfunction experienced by the applicant was multifactorial in etiology and included PTSD, depression, and possibly alcohol abuse.  Additionally, the applicant was also subsequently diagnosed in January 2001 with severe Obstructive Sleep Apnea, a condition that can cause excessive daytime drowsiness, cognitive impairment and can result in marked occupational impairment.  It is likely but not certain that he suffered from Obstructive Sleep Apnea for several years prior to diagnosis and may have been a contributing factor to the reported cognitive impairment in 1999; however, the records reflect the primary problems as depression, PTSD and related cognitive disorder.  The applicant's duty performance in 1999 was in stark contrast to his previous record and can be concluded to be largely the result of PTSD, depression, and the related cognitive disorder.  

The BCMR Medical Consultant is of the opinion that there is sufficient evidence to conclude that the applicant's medical condition was a direct and substantial causative factor for the behavior that lead to his nonjudicial punishment.  There is no evidence that this was considered at that time.  The BCMR Medical Consultant recommends that this evidence be strongly considered in considering the applicant's request for setting aside the Article 15 and restoring him to his highest grade held, E-6.  Although the nonjudicial punishment he received prevented him from testing for promotion to E-7, his cognitive disorder at that time rendered him noncompetitive for promotion even if he had not received an Article 15.  The BCMR Medical Consultant evaluation is at Exhibit C.

AFLSA/JAJM reviewed applicant's request and states that a member accepting nonjudicial punishment proceedings may have a hearing with the commander.  The member may have a spokesman at the hearing, may request that witnesses appear and testify, and may present evidence.  The commander must consider any information offered during that hearing and must be convinced by reliable evidence that the member committed the offense before imposing punishment.  Members who wish to contest their commander's determination or the severity of the punishment imposed may appeal to the next higher commander.   The appeal authority may set aside the punishment, decrease its severity, or deny the appeal.  The applicant's appeal was unsuccessful.  

AFLSA/JAJM is not prepared to conclude that the applicant's medical condition constituted a legal excuse for the applicant's behavior-that is the applicant had a severe mental disease or defect and was unable to appreciate the nature and quality or the wrongfulness of his acts.  AFLSA/JAJM does agree that a reasonable commander, if presented with this medical evidence at the time, would have most likely elected to address the applicant's behavior outside of the nonjudicial punishment forum.  AFLSA/JAJM is satisfied that, based on the information then available, the commander had sufficient basis to impose both the nonjudicial punishment action and then vacate the suspension for the subsequent misconduct.  AFLSA/JAJM states that the information does not show clear error; however, if the Board concludes that the evidence presented by the applicant demonstrates an injustice, setting aside the Article 15 action is warranted.  

The AFLSA/JAJM evaluation is at Exhibit D.

AFPC/DPPRRP reviewed applicant's request and states that on 5 July 2000, the applicant submitted an application for voluntary retirement, requesting an effective date of retirement of 1 June 2001.  In accordance with Section 8961, Title 10, United States Code, the applicant was correctly retired in the grade of SSgt, which was the grade he held on the date of his retirement.  On 11 August 2000, the SAFPC made the determination that he did not serve satisfactorily on active duty in any grade higher than SSgt.  DPPRRP states that there are no other provisions of law that would allow for advancement of enlisted members.  All criteria of the pertinent laws have been met in this regard and no error or injustices occurred in his retirement, grade determination or advancement action.  The DPPRRP evaluation, with attachments, is at Exhibit E.

AFPC/DPPPWB reviewed applicant's request and states that based on the applicant's DOR to TSgt of 1 February 1995, the first time he was eligible for promotion consideration to MSgt was cycle 97E7.  He was a nonselect for cycles 97, 98 and 99E7.  He was ineligible for promotion consideration for cycle 00E7 due to his reduction to the grade of SSgt on 29 October 1999.  DPPPWB states that if the Board feels there was an injustice and sets aside the Article 15, he would be entitled to supplemental promotion consideration for cycle 00E7.  However, since the applicant never served in the grade of MSgt, there is no valid reason to authorize a promotion to this grade.  The DPPPWB evaluation is at Exhibit F.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant specifically responded to the issue for promotion to the next higher grade (E-7).  He states that his long-term memory-those parts of his memory, which were learned prior to the onset of his condition, are still sufficiently intact that he would have been able to test competitively with his peers for E-7 in the absence of overwhelming stress, and given proper treatment for his conditions.  The materials he would have tested on for his next stripe, E-7, consist of much of the same materials he used to construct the on-the-job training course for airmen.  The Skills Knowledge Test section requires recall of information he has had superior knowledge of for the majority of his Air Force career, a fact that cannot be argued.

He feels that a medical opinion stating that the applicant’s cognitive disorder “at that time rendered him non-competitive for promotion even if he had not received the Article 15” does not take into consideration the incredible amount of stress he was placed under, and how this stress exacerbates the condition he suffers.  Since his retirement, his stress level has decreased geometrically.  He does not lead a stress-free life, but he no longer gets lost while driving in familiar places.  He still suffers from global memory loss (most notably in his short-term memory), cognitive disorder, and has trouble finding words, but with less frequency.  He still has sharp and accurate recall of virtually all of his medical knowledge.  He was an Air Force qualified EMT, but voluntarily allowed his National Registry to lapse due to his PTSD.  It would be a clear injustice to him, a man who gave everything he has to the Air Force and the country he loves so much to not give him the benefit of the doubt.  If he had not gotten the Article 15, he wouldn’t have been under such horrible stress.  If he hadn’t been under such horrible stress, there is no way anyone can predict with any certainty whether he would or wouldn’t have made E-7.  After all he has been through, wouldn’t it be in the interest of justice to give him the benefit of the doubt?

The applicant’s complete statement is at Exhibit H.

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THE BOARD RECOMMENDS THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting partial relief. With regard to the Article 15, we note the assessment of the BCMR Medical Consultant, who indicates that the applicant was suffering from a cognitive disorder, Post Traumatic Stress Disorder (PTSD) and depression at the time he was accused and disciplined with an Article 15 for making false statements and failure to go.  After a thorough review of the facts and circumstances of this case, we are persuaded that the applicant’s actions for which he received the Article 15 were the result of the applicant’s medical condition and were a direct and substantial causative factor for the behavior that lead to his nonjudicial punishment.  It appears, and we believe, that the underlying misconduct, which precipitated the nonjudicial punishment, was attributable to his medical ailments.  There is no other way to explain the abrupt change in his behavior and his sudden tendency to act in a manner so contrary to his own best interests.  In view of the above, the applicant’s otherwise outstanding and dedicated service, and to remove an error and an injustice, we recommend that the Article 15 be declared void and he be retired in the grade of technical sergeant.  

4.  Notwithstanding the above, we are not inclined to recommend that the applicant be promoted to the grade of master sergeant.  The applicant believes that because of the circumstances surrounding the Article 15 i.e., undue stress, he should receive a direct promotion to master sergeant by this Board.  We do not agree.  We have reviewed the available record and AFPC/DPPPWB evaluation and note that the applicant tested for promotion for cycles 97E7, 98E7 and 99E7 and was a nonselect.  Therefore, based on the available evidence of record, we are not persuaded that he should be promoted to master sergeant.  

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, 	be corrected to show that:

	a.  The nonjudicial punishment under Article 15, UCMJ, initiated on 12 July 1999 and imposed on 29 October 1999, be declared void and expunged from his records, and all rights, privileges and property of which he may have been deprived be restored.  

	b.  On 1 June 2001, he was retired in the grade of technical sergeant, rather than staff sergeant.  

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The following members of the Board considered Docket Number in Executive Session on 6 February 2003, under the provisions of AFI 36-2603:

All members voted to correct the records are recommended.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Dec 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 2 Apr 02.
    Exhibit D.  Letter, AFLSA/JAJM, dated 29 Jul 02.
    Exhibit E.  Letter, AFPC/DPPRRP, dated 3 Oct 02 w/atchs.
    Exhibit F.  Letter, AFPC/DPPPWB, dated 14 Aug 02.
    Exhibit G.  Letter, SAF/MRBR, dated 11 Oct 02.
    Exhibit H.  Applicant's Letter, dated 8 Nov 02.

                                                                      

AFBCMR 01-03646

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to , be corrected to show that:

		a.   The nonjudicial punishment under Article 15, UCMJ, initiated on 12 July 1999 and imposed on 29 October 1999, be, and hereby is, declared void and expunged from his records, and all rights, privileges, and property of which he may have been deprived be restored.

		b.   On 1 June 2001, he was retired in the grade of technical sergeant, rather than staff sergeant.